1994)"

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NORTH CAROLINA

IN THIS ISSUE

EXECUTIVE ORDERS

IN ADDITION

Voting Rights Act

PROPOSED RULES

Environment, Health, and Natural Resources
Human Resources

COlfa

TITUI

tiomI

RRC OBJECTIONS

CONTESTED CASE DECISIONS

ISSUE DATE: June 1, 1994

Volume 9 • Issue 5 • Plages 306 - 348

INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE

NORTH CAROLINA REGISTER

The North Carolina Register is published twice a month and
contains information relating to agency, executive, legislative and
judicial actions required by or affecting Chapter 150B of the General
Statutes. All proposed administrative rules and notices of public
hearings filed under G.S. 1 50B-21 .2 must be published in the Register.
The Register will typically comprise approximately fifty pages per
issue of legal text.

State law requires that a copy of each issue be provided free of
charge to each county in the state and to various state officials and
institutions.

The North Carolina Registers available by yearly subscription at
a cost of one hundred and five dollars ($105.00) for 24 issues.
Individual issues may be purchased for eight dollars ($8.00).

Requests for subscription to the North Carolina Register should be
directed to the Office of Administrative Hearings, P. O. Drawer 27447,
Raleigh, N.C. 27611-7447.

ADOPTION, AMENDMENT, AND REPEAL OF
RULES

The following is a generalized statement of the procedures to be
followed for an agency to adopt, amend, or repeal a rule. For the
specific statutory authority, please consult Article 2A of Chapter 1 50B
of the General Statutes.

Any agency intending to adopt, amend, or repeal a rule must first
publish notice of the proposed action in the North Carolina Register.
The notice must include the time and place of the public hearing (or
instructions on how a member of the public may request a hearing); a
statement of procedure for public comments; the text of the proposed
rule or the statement of subject matter; the reason for the proposed
action; a reference to the statutory authority for the action and the
proposed effective date.

Unless a specific statute provides otherwise, at least 15 days must
elapse following publication of the notice in the North Carolina
Registerbefovs the agency may conduct the public hearing and at least
30 days must elapse before the agency can take action on the proposed
rule. An agency may not adopt a rule that differs substantially from the
proposed form published as part of the public notice, until the adopted
version has been published in the North Carolina Register for an
additional 30 day comment period.

When final action is taken, the promulgating agency must file the
rule with the Rules Review Commission (RRC). After approval by
RRC, the adopted rule is filed with the Office of Administrative
Hearings (OAH).

A rule or amended rule generally becomes effective 5 business
days after the rule is filed with the Office of Administrative Hearings
for publication in the North Carolina Administrative Code (NCAC).

Proposed action on rules may be withdrawn by the promulgating
agency at any time before final action is taken by the agency or before
filing with OAH for publication in the NCAC.

TEMPORARY RULES

Under certain emergency conditions, agencies may issue tempo
rary rules. Within 24 hours of submission to OAH, the Codifier o
Rules must review the agency's written statement of findings of neet
for the temporary rule pursuant to the provisions in G.S. 150B-21.1. 1
the Codifier determines that the findings meet the criteria in G.S
150B-21.1, the rule is entered into the NCAC. If the Codifie
determines that the findings do not meet the criteria, the rule is returnee
to the agency. The agency may supplement its findings and resubmi
the temporary rule for an additional review or the agency may respon
that it will remain with its initial position. The Codifier, thereafter, wil
enter the rule into the NCAC. A temporary rule becomes effectiv
either when the Codifier of Rules enters the rule in the Code or on th
sixth business day after the agency resubmits the rule without change
The temporary rule is in effect for the period specified in the rule or 18(
days, whichever is less. An agency adopting a temporary rule mus
begin rule-making procedures on the permanent rule at the same tim
the temporary rule is filed with the Codifier.

NORTH CAROLINA ADMINISTRATIVE CODE

The North Carolina Administrative Code (NCAC) is a compilatio
and index of the administrative rules of 25 state agencies and 3
occupational licensing boards. The NCAC comprises approximatel
15,000 letter size, single spaced pages of material of which approxi
mately 35% is changed annually. Compilation and publication of th
NCAC is mandated by G.S. 150B-21.18.

The Code is divided into Titles and Chapters. Each state agency i
assigned a separate title which is further broken down by chapter;
Title 21 is designated for occupational licensing boards.

The NCAC is available in two formats.

(1) Single pages may be obtained at a minimum cost of tw
dollars and 50 cents ($2.50) for 10 pages or less, plus fiftee
cents ($0.15) per each additional page.

(2) The full publication consists of 53 volumes, totaling i
excess of 15,000 pages. It is supplemented monthly wit
replacement pages. A one year subscription to the fu
publication including supplements can be purchased fo
seven hundred and fifty dollars ($750.00). Individual vol
umes may also be purchased with supplement service. Re
newal subscriptions for supplements to the initial publicatio
are available.

Requests for pages of rules or volumes of the NCAC should b
directed to the Office of Administrative Hearings.

CITATION TO THE NORTH CAROLINA
REGISTER

The North Carolina Register is cited by volume, issue, pag
number and date. 1:1 NCR 101-201, April 1, 1986 refers to Volum
1, Issue 1, pages 101 through 201 of the North Carolina Registerissae
on April 1, 1986.

FOR INFORMATION CONTACT: Office of Administra-
tive Hearings, ATTN: Rules Division, P.O. Drawer 27447,
Raleigh, North Carolina 2761 1-7447, (919) 733-2678.

NORTH
CAROLINA
REGISTER

Office of Administrative Hearings

P. O. Drawer 27447

Raleigh, North Carolina 27611-7447

(919) 733-2678

Julian Mann III,

Director
James R. Scarcella Sr.,

Deputy Director
Molly Masich,

Director ofAPA Services

Staff:

Ruby Creech,

Publications Coordinator
Teresa Kilpatrick,

Editorial Assistant
Jean Shirley,

Editorial Assistant

This publication is printed on permanent,
acid-free paper in compliance with
G.S. 125-11.13.

ISSUE CONTENTS

I. EXECUTIVE ORDERS

Executive Orders 46-48

n. IN ADDITION

Voting Rights Act

306

312

HI. PROPOSED RULES

Environment, Health, and
Natural Resources

Health Services ........... 323

Human Resources
Medical Assistance ......... 318

Mental Health, Developmental
Disabilities and Substance Abuse
Services 313

IV. RRC OBJECTIONS 325

V. CONTESTED CASE DECISIONS

Index to ALJ Decisions 328

Text of Selected Decisions

92 OSP 1454 333

93 OSP 0925 342

VI. CUMULATIVE INDEX ....... 347

NORTH CAROLINA REGISTER

Publication Schedule

(April 1994 - January 1995)

Volume
and
Issue

Number

Issue
Date

Last Day

for

Filing

Last Day
for Elec-
tronic
Filing

Earliest

Date for

Public

Hearing

15 days

from

notice

* End of

Required

Comment

Period

30 days

from

notice

Last Day

to Submit

toRRC

** Earliest

EflFective

Date

9:1

04/04/94

03/11/94

03/18/94

04/19/94

05/04/94

05/20/94

07/01/94

9:2

04/15/94

03/24/94

03/31/94

05/02/94

05/16/94

05/20/94

07/01/94

9:3

05/02/94

04/11/94

04/18/94

05/17/94

06/01/94

06/20/94

08/01/94

9:4

05/16/94

04/25/94

05/02/94

05/31/94

06/15/94

06/20/94

08/01/94

9:5

06/01/94

05/10/94

05/17/94

06/16/94

07/01/94

07/20/94

09/01/94

9:6

06/15/94

05/24/94

06/01/94

06/30/94

07/15/94

07/20/94

09/01/94

9:7

07/01/94

06/10/94

06/17/94

07/18/94

08/01/94

08/22/94

10/01/94

9:8

07/15/94

06/23/94

06/30/94

08/01/94

08/15/94

08/22/94

10/01/94

9:9

08/01/94

07/11/94

07/18/94

08/16/94

08/31/94

09/20/94

11/01/94

9:10

08/15/94

07/25/94

08/01/94

08/30/94

09/14/94

09/20/94

11/01/94

9:11

09/01/94

08/11/94

08/18/94

09/16/94

10/03/94

10/20/94

12/01/94

9:12

09/15/94

08/24/94

08/31/94

09/30/94

10/17/94

10/20/94

12/01/94

9:13

10/03/94

09/12/94

09/19/94

10/18/94

11/02/94

11/21/94

01/01/95

9:14

10/14/94

09/23/94

09/30/94

10/31/94

11/14/94

11/21/94

01/01/95

9:15

11/01/94

10/11/94

10/18/94

11/16/94

12/01/94

12/20/94

02/01/95

9:16

11/15/94

10/24/94

10/31/94

1 1/30/94

12/15/94

12/20/94

02/01/95

9:17

12/01/94

11/07/94

11/15/94

12/16/94

01/03/95

01/20/95

03/01/95

9:18

12/15/94

11/22/94

12/01/94

12/30/94

01/17/95

01/20/95

03/01/95

9:19

01/03/95

12/08/94

12/15/94

01/18/95

02/02/95

02/20/95

04/01/95

9:20

01/17/95

12/21/94

12/30/94

02/01/95

02/16/95

02/20/95

04/01/95

This table is published as a public service, and the computation of time periods are not to be deemed binding
or controlling, lime is computed according to 26 NCAC 2B .0103 and the Rules of Civil Procedure, Rule
6.

* An agency must accept comments for at least 30 days after the proposed text is published or until the date
of any public hearing, whichever is longer. See G.S. 150B-2 1.2(f) for adoption procedures.
** The "Earliest Effective Date " is computed assuming that the agency follows the publication schedule above,
that the Rules Review Commission approves the rule at the next calendar month meeting after submission, and
that RRC delivers the rule to the Codifier of Rules five (5) business days before the 1st business day of the next
calendar month.

Revised 03194

EXECUTIVE ORDERS

EXECUTIVE ORDER NO. 46

COMMISSION ON SUBSTANCE ABUSE

TREATMENT AND PREVENTION

By the authority vested in me as Governor by the
Constitution and laws of North Carolina, IT IS
ORDERED:

Section 1. Establishment and Membership.

(a) There is hereby established a Commission on
Substance Abuse Treatment and Prevention
("Commission") and an Office of Substance Abuse
Policy ("Office").

(b) The Commission shall consist of twenty
persons appointed by the Governor. The Governor
shall designate the Chair of the Commission. All
Commission members shall serve at the pleasure of
the Governor.

(c) Members shall be citizens, government
officials and representatives of nonprofit organiza-
tions who have demonstrated interest, involvement,
or expertise in issues related to prevention, inter-
vention, and treatment of alcohol and other drug
abuse.

(d) For the initial appointment period, ten of the
members shall serve two-year terms and ten
members shall serve four-year terms. At the
expiration of these terms, subsequent member
appointments shall be for four-year terms.

(e) The Commission shall meet regularly at the
call of the Chair.

Section 2. Functions.

In fulfilling its responsibilities, the Commission
shall have the following duties:

(a) Engender cooperation and collaboration
among agencies, public and private,
involved in drug and alcohol abuse pro-
grams;

(b) Review the North Carolina laws regard-
ing substance abuse, including criminal
and service-delivery statutes, and make
recommendations concerning needed
changes;

(d) Conduct public hearings and advise the
Governor and other appropriate state
government departments and agency
heads of the result and recommendations
of the Commission;

(e) Encourage local boards, councils, or
commissions to mobilize resources to
address substance abuse problems;

(f) Encourage local boards, councils, or
commissions to develop an implementa-
tion plan to meet identified needs;

(g) Assist local boards, councils, or commis-
sions in identifying model prevention,
intervention, and treatment efforts;

(h) Encourage program activities that in-
crease public awareness of substance
abuse and strategies to decrease the prob-
lem; and

(i) Other duties as assigned by the Governor

and/or Secretary of the Department of
Administration.

Section 3. Administration.

(a) The heads of all State departments and
agencies shall, to the extent permitted by law,
provide the Commission and the Office with
information they require to achieve the purposes of
this Order.

(b) The Office shall hire such staff as may be
necessary to help the Commission accomplish its
goals, contingent upon the availability of funds.

(c) Members of the Commission shall serve
without compensation, but may receive reimburse-
ment contingent on the availability of funds for
travel and subsistence expenses in accordance with
state guidelines and procedures.

(d) The Commission and the Office shall be
funded by the Governor's discretionary funds and
from agencies who have primary responsibility for
involvement in program issues affecting drugs and
alcohol. For administrative purposes, the Com-
mission and the Office shall be housed in the
Department of Administration. Oversight shall be
with the Governor's Policy Office.

Section 4. Reports.

(a) Every department, agency, institution, and
organization subject to the Executive Budget Act
(Chapter 143 of the General Statutes), and a direct
or indirect recipient of state or federal substance
abuse funding, shall report specific program and
fiscal information semi-annually to the Office, in
a report format approved by that office and the
Office of State Budget and Management.

(b) These reports shall, at least, include a report
of all revenues and expenditures for the period. In
addition, each report shall contain expenditure
activity against explicit substance abuse program
performance measures determined by the depart-
ment, agency, institution, or organization consis-
tent with nomenclature and procedures for perfor-
mance-based budgeting established by the Office of
State Budget and Management.

9:5

NORTH CAROLINA REGISTER

June 1, 1994

306

EXECUTIVE ORDERS

Section 5. Rescission.

Executive Orders 23, 64, and 132 of the Martin
Administration are hereby rescinded.

This Executive Order is effective this the 27th
day of April, 1994.

EXECUTIVE ORDER NO. 47

BOARD OF EDUCATION FOR

THE SCHOOLS FOR THE DEAF

By the power vested in me as Governor by the
laws and Constitution of the State of North
Carolina, IT IS ORDERED:

Section L Establishment and Purpose.

There is hereby created the Board of Education
for the Schools for the Deaf ("Board"). Its
purpose shall be to provide direction and guidance
to the North Carolina Schools for the Deaf
("Schools") and the Department of Human
Resources ("DHR").

Section 2. Membership and Terms.

The Board shall consist of 12 voting members
appointed by the Governor as follows:

(A) Three members shall be parents of
students that have attended the North
Carolina Schools for the Deaf, with each
of the three Schools represented;

(B) Three members shall be at-large
representatives;

(D) Two members of the business community
who have vocational placement expertise;
and

(E) One member who is a past attendee of
one of the Schools or a member of the
North Carolina Association of the Deaf.

(F) In addition, three students, one from each
of the Schools, shall serve as non-voting
advisors.

Three members shall be designated to serve
initial terms of four years, three to serve initial
terms of three years, three to serve initial terms of
two years and three members to serve initial terms
of one year. After the initial appointees' terms
have expired, all members shall be appointed for
a term of four years. No member appointed by

the Governor shall serve more than two successive
terms.

To the extent possible, each member should have
a background or interest in deaf children and their
educational needs. Any appointment to fill a
vacancy on the Board created by the resignation,
dismissal, death, or disability of a member shall be
for the balance of the unexpired term.

The Chair of the Board shall be designated by
the Secretary of the DHR from among the Board
members and shall hold this office for a two-year
term. The Chair may be reappointed for addition-
al terms.

Section 3. Meetings and Administration.

(A) The Board shall meet quarterly and at other
times at the call of the Chair. A simple majority
of the Board shall constitute a quorum. An affir-
mative vote of a majority of the Board shall be
required to take action.

(B) Board members shall be reimbursed by
DHR for subsistence and travel expenses in accor-
dance with N.C.G.S. 138-5 or 138-6.

(D) The Chair shall mail a copy of each Board
meeting agenda to the Chair of the Council for the
Deaf and Hard of Hearing (set up in N.C.G.S.
143B-216.31) ten days prior to the meeting.

Section 4. Duties.

(A) Evaluate and recommend changes to the
Secretary of DHR on academic, curriculum,
facility and budgetary matters in the Schools.

(B) Work to ensure equal access to a free,
appropriate public education for all deaf children
at the Schools.

(C) Review program development and consisten-
cy toward the goal of 24-hour quality educational,
vocational, and residential programs at the
Schools.

(D) Formulate and recommend to the Secretary
of DHR policies, procedures, and quality assur-
ance methods to achieve that goal.

(E) Interface with the Council for the Deaf and
Hard of Hearing on issues of mutual interest.

This Order is effective immediately and shall
terminate in four years, unless extended by further
executive order.

Done in the Capital City of Raleigh, North
Carolina, this the 10th day of May, 1994.

307

9:5

NORTH CAROLINA REGISTER

June 1, 1994

EXECUTIVE ORDERS

EXECUTIVE ORDER NO. 48

CONCERNING THE STATE

COMMISSION ON NATIONAL AND

COMMUNITY SERVICE

WHEREAS, the increasing realization of the
importance of volunteerism and civic participation,
the growing recognition of community service as
a means of community and state problem-solving,
and the revival of national service as an avenue for
addressing many of the country's unmet social,
environmental, educational, and public safety
needs have revealed new options for enhancing the
quality of life for North Carolinians; and

WHEREAS, promoting the capability of North
Carolina's people, communities, and enterprises to
work collaboratively is vital to the long-term
prosperity of this state; and

WHEREAS, building and encouraging communi-
ty service as an integral part of the formula to our
growth as a state and as a nation requires coopera-
tive efforts by the public sector, the private sector,
the nonprofit sector, and partnerships among these
sectors; and

WHEREAS, a State Commission is necessary to
advise and assist in the development of a compre-
hensive, statewide service plan for promoting
volunteer involvement and citizen participation in
North Carolina;

NOW, THEREFORE, by the authority vested in
me as Governor by the Constitution and laws of
North Carolina, IT IS ORDERED:

Section L Establishment.

The State Commission on National and Commu-
nity Service ("Commission") is hereby established
to encourage community service and volunteer
participation as a means of community and state
problem-solving; to promote and support voluntary
citizen involvement in government and private
programs throughout the state; to develop a long-
term, comprehensive vision and plan of action for
community service initiatives in North Carolina;
and to serve as the state's liaison to national and
state organizations which support its mission.

Section 2. Membership.

A. All members of the Commission shall be
appointed by the Governor. It shall consist of no
fewer than 15 and no more than 25 members. The
Governor shall appoint four of the Commission

members from the Standing Committee on Youth
Voice. Not more than 50 percent of the Commis-
sion plus one member may be from the same
political party. To the extent possible, it shall be
diverse in race, ethnicity, age, disability, and
gender. Terms shall be for three years and shall
be staggered.

B. The Commission shall include:

(1) An individual with expertise in the educa-
tional, training, and developmental needs
of youth, particularly disadvantaged
youth.

(2) An individual with experience in promot-
ing the involvement of older adults in
service and volunteerism.

(3) A representative of community-based
agencies or community-based organiza-
tions within the State.

(4) The Superintendent of the Department of
Public Instruction, or his designee.

(5) A representative of local governments in
the State.

(6) A representative of local labor organiza-
tions in the State.

(7) A representative of business.

(8) At least four individuals between the ages
of 12 and 25 who are service providers
or recipients in a volunteer or service
program.

(9) A representative of the Corporation for
National and Community Service de-
scribed in Section 122(a) of the United
States Public Law 103-82 ("PL."), as a
non-voting, ex officio member.

C. The Commission may include:

(1) Members selected from among local
educators.

(2) Members selected from among experts in
the delivery of human, educational,
environmental, or public safety services
to communities and persons.

(3) Representatives of Native American
tribes.

(4) Members selected from among out-of-
school youth or other "at-risk" youth.

(5) Representatives of entities that receive
assistance under the Domestic Volunteer
Service Act of 1973 (42 U.S.C. 4950 et
seq.).

D. Not more than 25 percent of the Commission
members may be employees of state government,
though additional state agency representatives may
sit on the Commission as non-voting, ex officio
members.

E. Vacancies among the members shall be filled

9:5

NORTH CAROLINA REGISTER

June 1, 1994

308

EXECUTIVE ORDERS

by the Governor to serve for the remainder of the
unexpired term.

Section 3. Officers.

The Officers of the Commission shall be Chair
and Vice-Chair. All officers shall be elected by
the voting Commission members from among their
ranks and shall serve for a term of one year.
Vacancies in any offices shall be filled with an
election by the Commission for the remainder of
the unexpired term.

a. Chair: It shall be the responsibility of
the Chair to preside at all meetings of the
Commission; to appoint all committee
chairs; to assist all committee chairs in
the planning of committee activities; to
supervise all chairs as to the management
of committee plans; to authorize and
execute the wishes of the board; and to
be an ex officio member of all
committees.

b. Vice- Chair: The Vice-Chair shall assist
the Chair, and, in the absence of the
Chair, perform those duties. The Vice-
Chair shall accept special assignments
from the Chair and perform other duties
as delegated by the Commission.

Section 4. Effect On Other Executive Orders.

The Commission is the successor group to the
Governor's Voluntary Advisory Council, formed
by Martin Administration Executive Order 1 39 and
amended by Executive Order 185. That Council
was disbanded by Executive Order 31, dated
October 1, 1993. This Executive Order replaces
and rescinds Executive Order 31.

Section 5. Standing Committees.

The Standing Committees shall advise and assist

the Commission in carrying out its duties and

responsibilities. Committee chairs shall be

appointed by the Commission Chair from among

Commission members, but the committees 5

members need not be limited to Commission

members. With the exception of the Standing

Committee on Youth Voice, the Commission

Chair, in consultation with the Committee Chairs,

shall name the committees' members. Standing

Committees of the Commission shall include:

a. Youth Voice: The Standing Committee

on Youth Voice shall consist of 24

members between the ages of 12 and 25.

Members shall come from 12 regions of

the state and be diverse in gender, race

and ethnicity, geographic location,

physical ability, and economic and
educational background. Its

responsibilities shall include out-reach to
youth statewide, developing and
recommending policies and programs to
the Commission, training other young
people in the skills necessary to
strengthen community service programs
as well as bringing the perspective of
young people to all Commission
discussions and decisions. For the initial
term, members of the Standing
Committee on Youth Voice will be
named by peer selection. Following the
initial term, 12 Regional Councils (to be
designated by the Commission) will each
name two representatives to the Standing
Committee. The Standing Committee on
Youth Voice shall recommend to the
Governor four members to serve on the
Commission.

b. Volunteer Recognition: The Standing
Committee on Volunteer Recognition
shall assist with the implementation of
Governor's awards relating to exemplary
volunteer service in the State; work with
individual communities to develop local
recognition programs; and explore
additional opportunities to recognize
individuals and organizations addressing
community needs through volunteer
service.

c. Evaluation: The Standing Committee on
Evaluation shall evaluate each program
funded by the Corporation for National
and Community Service (described in the
RL. 103-82) and state organizations
which support the purpose of the
Commission to assure their on-going
quality.

d. Community Collaboration: The Standing
Committee on Community Collaboration
shall promote communication and
information sharing between state and
local private and public initiatives to meet
community needs.

e. Resource Development: The Standing
Committee on Resource Development
shall develop and implement strategies to
secure local, state, and federal resources
to reinforce, expand, and initiate quality
community programs across the state.

f. Training: The Standing Committee on
Training will develop and implement
strategies for training and technical

309

9:5

NORTH CAROLINA REGISTER

June 1, 1994

EXECUTIVE ORDERS

assistance to community service
programs, potential grant applicants and
State Commission-funded programs, as
well as work towards building service
program partnerships statewide,
g. Service Learning: The Standing

Committee on Service Learning will act
as a liaison between the State
Commission, private and public
institutions of higher education and the
Department of Public Instruction to shape
the service learning state plan and
promote service learning in community-
based and school-based programs and
partnerships across the state.

Section 6. Meetings.

The Commission shall meet at least quarterly.
Failure to attend at least 75 percent of called
meetings in any calendar year shall result in
removal from the Commission. A quorum shall
consist of a simple majority of voting members.

Section 7. Duties.

The Commission shall, in the performance of its
tasks and functions:

a. Ensure that its funding decisions meet all
federal and state statutory requirements.

b. Recommend innovative, creative,
statewide service programs to increase
volunteer participation in all age groups
and community-based problem-solving
among diverse participants.

c. Develop and implement a centralized,
organized system of obtaining
information and technical support
concerning volunteerism and community
service recruitment, projects, training
methods, materials, and activities
throughout North Carolina. Share such
information and support upon request.

d. Promote strong interagency collaboration
as an avenue for maximizing resources
and provide that model on the State level.

e. Provide public recognition and support of
individual volunteer efforts and
successful or promising private sector
initiatives and public/private partnerships
of which address community needs.

f. Stimulate increased community awareness
of the impact of volunteer services in
North Carolina.

g. Utilize local, state, and federal resources
to reinforce, expand, and initiate quality
service programs.

h. Assist the Governor's Office of Citizen

Affairs in the planning and implementa-
tion of volunteer programs.

i. Serve as the state's liaison and voice to

appropriate national and state organiza-
tions which support its mission.

j. Prepare a national three-year service plan

for the State which follows state and
federal guidelines.

k. Prepare the financial assistance applica-

tions of the State under Sections 1 1 7B
and 1301 of the PL. 103-82.

1. Assist in the preparation of the applica-

tion of the North Carolina Department of
Public Instruction for assistance under
Section 113 of the PL. 103-82.

m. Prepare the State's application under
Section 130 for the approval of service
positions such as the national service
educational award described in Subtitle D
of the PL. 103-82.

n. Make technical assistance available to

enable applicants for assistance under
Section 121 to plan and implement ser-
vice programs; and to apply for assis-
tance under the federal service laws such
as the PL. 103-82.

o. Assist in the provision of health care and

child care benefits under Section 140 to
participants in national service programs
that receive assistance under Section 121
of the PL. 103-82.

p. Develop a state system for the recruit-

ment and placement of participants in
programs that receive assistance under
the national service laws and disseminate
information concerning national service
programs that receive such assistance or
approved national service positions.

q. Administer the State's grant program in

support of national service programs
(using assistance provided to the State
under Section 121 of the PL. 103-82)
including selection, oversight, and evalu-
ation of grant recipients.

r. Coordinate its functions (including re-

cruitment, public awareness, and training
activities) with any division of the federal
ACTION program or the Corporation for
National and Community Services out-
lined in the PL. 103-82.

Section 8. Administration and Expenses.

The Governor's Office of Citizen Affairs shall
provide necessary administrative and staff support

9:5

NORTH CAROLINA REGISTER

June 1, 1994

310

EXECUTIVE ORDERS

services to the Commission. The Commission is
authorized to accept funds and in-kind services
from other state and federal entities, as authorized
by the North Carolina Executive Budget Act. No
per diem allowance shall be paid to members of
the Commission. Members of the Commission
and staff may receive necessary travel and subsis-
tence expenses in accordance with state law.
These expenses shall be paid from federal funds
where possible. If federal funds are not available,
these expenses may be paid only if the Governor's
Office has sufficient funds.

This Order is effective immediately.

Done in Raleigh, North Carolina, this the 12th
day of May, 1994.

311 9:5 NORTH CAROLINA REGISTER June 1, 1994

IN ADDITION

Ihis Section contains public notices that are required to be published in the Register or have been
approved by the Codifier of Rules for publication

U.S. Department of Justice

Civil Rights Division

DLP:MAP:MJP:emr Voting Section

DJ 166-012-3 P.O. Box 66128

94-0856 Washington, DC. 20035-6128

April 26, 1994

Robert C. Cogswell, Jr., Esq.

City Attorney

P. O. Box 1513

Fayetteville, North Carolina 28302-1513

Dear Mr. Cogswell:

This refers to the procedures for conducting the May 3, 1994, special bond election for the City of
Fayetteville in Cumberland County, North Carolina, submitted to the Attorney General pursuant to Section
5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973c. We received your submission on
February 28, 1994.

The Attorney General does not interpose any objection to the specified change. However, we note
that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent
litigation to enjoin the enforcement of the change. See the Procedures for the Administration of Section 5 (28
C.F.R. 51.41).

Sincerely,

Deval L. Patrick

Assistant Attorney General

Civil Rights Division

By:

Steven H. Rosenbaum
Chief, Voting Section

9:5 NORTH CAROLINA REGISTER June 1, 1994 312

PROPOSED RULES

TITLE 10 - DEPARTMENT OF
HUMAN RESOURCES

ISotice is hereby given in accordance with G.S.
150B-21.2that the Commission for Mental Health,
Developmental Disabilities and Substance Abuse
Services intends to amend rules cited as 10 NCAC
18F .0312 - .0313, .0318 - .0319; and adopt rules
cited as 10 NCAC 18F .0321 - .0322, with chang-
es from the proposed text noticed in the Register .
Volume 9, Issue 1, pages 13-23.

1 he proposed effective date of this action is
September 1, 1994.

IVeason for Proposed Action: To provide public
notice of substantive changes made at the May 10,
1994 public hearing regarding conducting and
reporting DWI assessments.

Ksomment Procedures: Written comments may be
submitted to Charlotte Tucker, Division of Mental
Health, Developmental Disabilities and Substance
Abuse Services, Albemarle Building, 325 N.
Salisbury Street, Raleigh, N.C. 27603. These
comments will be accepted from June 1 , 1994
through July 1, 1994.

rLditor's Note: An agency may not adopt a rule
that differs substantially from the text of a pro-
posed rule published in the Register, unless the
agency publishes the text of the proposed differ-
ent rule and accepts comments on the new text
for at least 30 days after the publication of the
new text.

CHAPTER 18 - MENTAL HEALTH:
OTHER PROGRAMS

SUBCHAPTER 18F - PROGRAM SUPPORT
STANDARDS

SECTION .0300 - SUBSTANCE ABUSE
ASSESSMENTS FOR INDIVIDUALS

CHARGED WITH OR CONVICTED OF
DRIVING WHILE IMPALED (DWI)

.0312 PURPOSE AND SCOPE

Th e purpoo e of th e rules of thio S e ction is to
ootnbliah s p e cific proo e dur e e for oonduoting and
reporting DWI substance abuse aflsoosmonto. Suoh
asBeflBm e ntfl may b e sought e ith e r voluntarily on a

pro trial basi s or by order of the preoiding judg e
These rules apply to any facility lioonood by the
State as an alcoholi s m and substance abuse treat -

ment facility or a facility which provides aubotancc
abuse services and is excluded from licensure

under G.S. — 122C 22 which wishes to perform
DWI substance abuse assessments.

(a) The purpose of the rules of this Section is to
establish specific procedures for conducting and
reporting DWI substance abuse assessments-
Alcohol and Drug Education Traffic Schools

(ADETS). and treatment of DWI offenders.
(b) Assessments may be sought either voluntari-

ly on a pre-trial basis or by order of the presiding
judge.

(d) In order for a facility to perform DWI
assessments, it shall:

(1) be licensed by the State as an alcohol
ism and substance abuse treatment
facility: or

(2) provide substance abuse services, and
be excluded from licensure under G.S
122C-22.

Statutory Authority G.S. 20-1 79(e)(6) and (m).

.0313 DEFINITIONS

For the purpose of the rules in this Section, the
following terms shall have the meanings indicated:

' Alcohol and Drug — Education Traffic

School (ADETS)" means a prevention

and intervention service which provides

an educational program primarily for fir s t

offender s — convicted — e£ — driving — while

impaired. — Thi s s ervice i s designed to
reduce the recidivism rate for the offen s e

of driving while impaired.

"American Society of Addiction Medicine

(ASAM) Placement Criteria" means the
Patient Placement Criteria for the Treat-

ment of Psychoactive Substance Abuse

Disorders, copyright 1991 by the Nation-
al Association of Addiction Treatment

Providers and the American Society of
Addiction Medicine. For these Rules.

the ASAM Level L Outpatient Treat-

ment, has been divided into I.A.. Short-

term and I.B.. Longer-term Outpatient

Treatment.

"Certified ADETS Instructor" means an

individual who is certified by the Divi-

sion in accordance with 10 NCAC 18M
.0906 Instructor Certification, contained

313

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June 1, 1994

PROPOSED RULES

in Division publication. Standards for
Area Programs and Their Contract Agen-
cies, APSM 35-1, and available at the
current printing cost.

(3) £3) "Clinical Interview" means the face-
to-face interview with a substance abuse
professional intended to gather informa-
tion on the client, including, but not
limited to the following: demographics,
medical history, past and present driving
offense record, alcohol concentration of
current offense, social and family history,
substance abuse history, vocational back-
ground and mental status.

(4) "Continuing Care" means an out patient
service designed to maximize the recov-
ery experience begun in more intensive
treatment: out patient or inpatient. As a
continuation of the treatment experience
this service is expected to begin immedi-
ately upon the client's discharge from
intensive treatment:

(a) When the continuing care follows an
inpatient treatment experience, it shall:

(i) include a minimum of 20 contact
hours of service scheduled no less
than weekly, during a 30-day period:
and

(ii) continue for a minimum period of 90
days.

(b) The services shall be provided accord-
ing to a written continuing care plan
which shall:

(i) address the needs of the client: and
(ii) utilize individual, family and group

counseling as required to meet the

needs of the client.

(5) "Division" means the same as defined in
G.S. 122C-3: and is hereafter referred to
as DMH/DD/SAS.

0) £6) "DMH Form 508 (DWI Services
Certificate of Completion)" means the
four-part form which is used in docu-
menting the offenders completion of the
DWI substance abuse assessment and
treatment or ADETS and compliance or
non compliance of ADETS as appropri

ftt©.

CD "Driving record" means a person's com-
plete North Carolina driving history, as
maintained by the North Carolina
Driver's License Division's history file.

(8) "DSM" means the current edition of the
Diagnostic and Statistical Manual of
Mental Disorders of the American

Psychiatric Association.
(4) £9) "DWI" means impaired driving as

described in G.S. 20-138.1.
(10) "DWI categories of service" mean:
(a) "Alcohol and Drug Education Traffic
School (ADETS)" means an a pproved
curriculum which shall:
£i} include K) to J_3 contact hours in a

classroom setting:
(ii) be provided by area programs or their
designated agencies with certified
ADETS instructors: and

(iii) be designed for persons:
(A) who have only

one

DWI

conviction (lifetime):

(B) whose assessment did not identify
a "Substance Abuse Handicap":
and

(b) "Day treatment" means a structured,
outpatient service. It may also be
called intensive outpatient treatment, as
defined in K) NCAC 14N .0900 and
a pplicable portions of K) NCAC 14K
.0300. which include ASAM Level II
treatment criteria.

(c) "Inpatient residential treatment
services" means an array of services
which may include detoxification and
rehabilitation in a structured
environment, as set forth in K> NCAC
14Q .0300. and contained in Licensure
Rules as defined in Item (14) of this
Rule. Such services will correspond
with ASAM Level III and Level IV
treatment criteria.

(d) "Longer-term outpatient treatment"
means a structured program meeting the
ASAM definition of Level L Outpatient
Treatment, and requiring a minimum of
40 contact hours scheduled to maintain
the client in active treatment for a
minimum period of 60 days, providing
counseling and learning experiences
which include the "Minimal Subject
Content. " as defined in this Rule. The
facility must operate in compliance with
Licensure Rules. 10 NCAC 14N .0700
and applicable portions of K) NCAC
14K .0300.

(e) "Short-term outpatient treatment" means
a structured program meeting the broad
definition of "ASAM Level L
Outpatient Treatment." and requiring a

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NORTH CAROLINA REGISTER

June 1, 1994

314

PROPOSED RULES

minimum of 20 contact hours over a

period of at least 30 days, including

counseling and didactic experiences

which include the minimal subject

content. Facilities which are a pproved

to provide this shall operate in

compliance with Licensure Rules

contained in 10 NCAC 14N .0700 and

a pplicable portions of K) NCAC 14K

.0300.

(S) OJi "DWI Substance Abuse

Assessment" means a service provided to

persons charged with or convicted of

DWI to determine the presence or

absence of a substance abuse handicap.

The assessment involves a clinical

interview as well as the use of a

standardized test.

{€) (12) "Facility" means the term as

defined in G.S. 122C-3(14).

(13) "Licensure rules" mean the rules
contained in 10 NCAC 14K through 14Q
of the North Carolina Administrative
Code and published in Division publica-
tion. Licensure Rules for MH/DD/SA
Facilities, APSM 40-2.

(14) "Minimal subject content" means the
following list of subjects which shall be
addressed in the educational portion of
any treatment program serving DWI
offenders:

(a) Effects of Alcohol and Drugs on the
Body/Brain;

(b) The Nature of Denial;

(d) Progression of Disease and Recovery
(Jellinek Chart);

(e) Chemical Dependency and the Family;

(f) Introduction to Self- Help Groups/ 12
Step Recovery Programs;

(g) Relapse Prevention and Strategies for
Recovery; and

(h) Safe Roads Act Penalties.

(15) "Special service plan" means a plan for
persons who exhibit unusual circumstanc-
es, such as severe hearing impairment,
other physical disabilities, concurrent
psychiatric illness, language and commu-
nication problems, intractable problems
of distance, transportation and schedul-
ing, and chronic offenders with multiple
unsuccessful treatment experiences.

(9) (16) "Standardized Test" means an
instrument a written test approved by the

Department of Human Resources, with
documented reliability and validity,
which serves to assist the assessment
agency or individual in determining if the
client has a substance abuse handicap. A
current listing of the approved standard-
ized tests may be obtained by writing the
DWI/Criminal Justice Branch, Division
of Mental Health, Mental Retardation and

Substance Abu s e Services MH/DD/SAS,

325 N. Salisbury Street, Raleigh. NC

27603 33644.

(17) "Substance Abuse Handicap" means

a degree of dysfunction directly related to

the recurring use/abuse of an impairing

substance.

Statutory Authority G.S. 20-138.1; 20-179; 122C-
3.

.0318 RESPONSIBILnTES OF TREATMENT
OR ADETS PROVIDERS

(a) An individual shall be provided with docu-
mentation that outlines their obligation, resulting
from the assessment recommendations. A written

plan shall be developed by the facility providing
the recommended treatment or ADETS to insure
that the individual understand s the requirements of
the particular treatment or education service in
which they arc enrolled.

(b) Individual s shall not be denied the opportuni -
ty to complete the service recommended by the
assessing agency. An individual who does not
begin services within nine months of the date of
the initial assessment shall be re-evaluated utilizing
the results of the initial assessment.

(c) The facility providing the recommended
treatment or ADETS shall have the individual
execute the appropriate release of information
giving that facility permission to report the client's
progress to the^ Divi s ion of Mental Health, Mental
Retardation, and Substance Abuse Services, the
Divi s ion of Motor Vehicles, the Court and the

Department of Correction.
LO DMH/DD/SAS;
(2) Division of Motor Vehicles;
£3} Court;

(4) Department of Correction: and

(5) assessing and treatment agencies, as
a ppropriate.

(d) Identification of a substance abuse handicap
shall be considered indicative of the need for
treatment^ when diagnostic criteria a pply . In such
instances, educationally-oriented and/or support
group services shall only be provided as a supple-

315

9:5

NORTH CAROLINA REGISTER

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PROPOSED RULES

ment to a more extensive treatment plan.

(e) If treatment is recommended and required
per the court's judgement, such treatment shall be
provided by a facility licensed by the state State
for the provision of such services. In addition, a
client record shall be opened en for each client
receiving treatment.

Statutory Authority G.S.
143B-147.

20-1 79(m); 122C-26;

.0319 REPORTING REQUIREMENTS

(a) The assessment portion of the DMH Form
508 shall be completed en for each client who
receives a DWI substance abuse assessment. An
initial supply of this form may be obtained from
the DWI/Criminal Justice Branch of the Divi s ion
ef DMH/DD/SAS Mental — Health, — Mental
Retardation, and Sub s tance Abuse Services , 325
N. Salisbury Street, Raleigh, N.C. 27603 37644.

(b) The assessment portion of DMH Form 508
shall be signed by a certified alcoholism, drug
abu s e or substance abuse counselor. The date of
expiration of that professional's certification shall
be indicated on the client's Certificate of
Completion and no assessment shall be signed after
the expiration date .

(c) The facility providing the recommended
treatment or education shall have the client sign
the a ppropriate release of information, and
progress reports shall be filed with the court or the
Department of Correction at intervals not to
exceed six months. If treatment, education or both

i s recommended, all four

pages

of the DMH Form

508 shall bo forwarded to the faoility providing the
recommended treatment or education.

(d) In the event that — ee — s ubstance — abu s e
handicap — is — identified — and — ne — treatment — ef
education — recommendations — afe — made, — the
assessing agency s hall forward the copie s of DMH
Form 50 8 as specified in part (g) of thi s Rule.
Upon completion of the recommended treatment or
ADETS service, the agency shall:

(1) forward the top page of the completed
DMH Form 508 to the DWI/Criminal
Justice Branch. DMH/DD/SAS: and

(2) retain, for a period of at least five
years, the appropriate page of the form,
and distribute the remaining pages to
the offender and the court as specified
on the bottom of the form.

(e) In the event that an assessment or treatment
agency ceases to provide DWI-related services, the
agency shall notify, in writing, the DWI Criminal
Justice Branch to assure that all DMH Form 508s

and other related documents specified in G.S. 20-
179(m) are properly processed. The facility
providing the recommended treatment or education
shall have the client s ign the appropriate release of
information, and progre s s reports s hall be filed
with the court or the Department of Correction at
interval s not to exceed six months.

(f) If treatment and ADETS have been court
order e d, and the individual does not successfully
complete the requirements of the ADETS, a copy
of the top s heet of DMH Form 50 8 showing non
compliance — s hall — be — forwarded — te — the
DWI/Criminal Ju s tice Branch, Division of Mental
Health, Mental Retardation, and Substance Abuse
Service s . — All four pages of the DMH Form 5 08
s hall be retained by the faoility providing the
recommended treatment s ervice until such s ervice
arc completed. By February 15 of each year, all
assessing agencies shall forward, in writing, to the
DWI/Criminal Justice Branch of the Division the
following information on the previous year's
activities, which shall include but need not be
limited to the number of:

(1) pre-trial assessments conducted;

(2) post trial assessments conducted:

(3) individuals referred to ADETS: and

(4) substance abuse handicaps identified
and the recommended levels of
treatment.

fg) Upon completion of the recommended

treatment or education service, the top page of the
completed DMH Form 50 8 shall be forwarded to
the DWI/Criminal Justice Branch, the Divi s ion of
Mental Health, Mental Retardation , and Substance

Abuse Services. — The

s hall al s o retain the

agency

appropriate page of the form and distribute the
remaining page s to the offender and the court aa
s pecified on the bottom of the form -: — The agency
providing the servicc( s ) shall retain its copy of this
form for a period of not loss than five years.

(h) In the event that an assessment or treatment
agency ceases providing DWI related services, it
shall be the re s pon s ibility of that agency to notify
the DWI Criminal Justice Branch in writing to
assure that all DMH Form 50 8 forms and other
related documents s pecified in G.S. 20 179(m) are
properly processed.

Statutory Authority G.S. 20-1 79(m).

.0321 PLACEMENT CRITERIA FOR
ASSESSED DWI CLIENTS

(a) Clients who have undergone a

DWI

substance abuse assessment shall be placed in the
a ppropriate DWI category of service.

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June 1, 1994

316

PROPOSED RULES

(b) Placement of clients in a specific category
shall be based on the assessment outcome,
diagnosis, and level of care determined to be
necessary for treatment.

(c) In addition to the terms defined in Rule
.0313(10) of this Section for each of the following
progressive categories, determination for
placement shall be based on the criteria specified
in this Paragraph.

£1} ADETS:

(A) the assessment did not identify a
"Substance Abuse Handicap;

(B) the person has no previous DWI
conviction; and

(2) Short-term Outpatient Treatment:

(A) the assessment outcome suggests
diagnosis of psychoactive substance
abuse only;

(B) the client does not fit all aspects of
the diagnosis, but, under certain
circumstances, the clinical picture
provides reason to conclude that a
treatment setting would be more
a ppropriate than ADETS. Some of
these circumstances include, but are
not limited to:

alcohol concentration is .15 or
higher;

ill

m
m

(hi

refusal of breath test at time of

arrest:

problems relating to family

history;

other problems which seem to be

a contributing factor to DWI

behavior; such as grief, loss, etc.:

and
(v) the client meets the criteria for

Level I of the ASAM Placement

Criteria.
(C) the person had an alcohol
concentration of 0.14% or less at the
time of arrest.

Longer-term Outpatient Treatment:
when a client meets minimal
conditions for the diagnosis of
"psychoactive substance dependence; "
and

(B) the criteria for Level I of the ASAM
placement is met.
(4) Day Treatment:

(A) the assessment confirms a diagnosis of
psychoactive substance dependence.

moderate or severe:

(B) the ASAM placement criteria for
Level II Outpatient Treatment is met:

{i} includes an educational component
which addresses at least the
minimal subject content, as
defined in Rule .0313 of this
Section;

(ii) offers additional continuing care-
urging voluntary participation of
the client and significant others:
and

(iii) requires a minimum of 90 contact
hours and participation of the
client over a period of at least 90
days, for any client referred under
G.S. 20-179(m) or (e)(6).

(D) program may be preceded by a brief
inpatient stay for detoxification or
stabilization of a medical or
psychiatric condition.

(5) Inpatient Residential Treatment
Services:

(A) the level of care requires that the
client meets the same diagnostic
criteria as Intensive Outpatient
(dependence is moderate or severe):

(B) outpatient treatment of other
associated problems has not been
successful;

(C) the client meets the placement criteria
for Levels III or IV (Inpatient) of the
ASAM Placement Criteria with regard
to the following six "patient problems
areas" as set forth in ASAM Patient
Placement Criteria. Adult Crosswalk;
and the client exhibits:

(i) withdrawal risk;

(ii) need for medical monitoring;

(iii) emotional and behavioral

problems requiring a structured

setting;
(iv) high resistance to treatment;
(v) inability to abstain; and
(vi) lives in a negative and destructive

environment.

(D) in order for the client to meet the
required 90-day time frame for
treatment, the client, upon discharge,
shall enroll in an approved continuing
care or other outpatient program.

(6) Special Service Plan:

(A) documented need for a special
program to correspond with the

317

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PROPOSED RULES

recommendations of the DWI
assessment, which shall include
documentation:
(i) of the special circumstances which
prove that the client is unable to
participate in or benefit from the
recommended basic structured
program: and
(ii) that the participation would be
detrimental to the client.
(B) Some of the conditions under which a
Special Service Plan is implemented
may include, but need not be limited
to. the following:
(i) severe hearing impairment:
(ii) other physical disabilities:
(iii) concurrent psychiatric illness:
(iv) language and communication

problems:
£v) intractable problems of distance,
transportation and scheduling: and
(vi) chronic offenders with multiple
unsuccessful treatment
experiences.

Statutory Authority G.S. 20- 179(e)(6) and (m).

.0322 DOCUMENTATIONREQUIREMENTS

(a) When conducting the assessment for an
individual charged with, or convicted of, offenses
related to Driving While Impaired (DWI), DMH
Form 508 shall be completed.

(b) If treatment is recommended, client record
documentation shall include, but not be limited to,
the following minimum requirements for each
"DWI category of service" defined in Rule .0313
of this Section, except for the ADETS category:

(1) all items specified in the "clinical
interview. " as defined in Rule .0313 of
this Section:

(2) results of the administration of an
approved "standardized test." as defined
in Rule .0313 of this Section:

(3) release of information as set forth in
Rules .0315 and .0318 of this Section:
and

(4) release of information covering any
collateral contacts, and documentation
of the collateral information.

(c) Substance abuse treatment records shall
comply with the requirements in 10 NCAC 14K
■0315(a) through fgL I1L fkL and in K) NCAC
14K .0317.

Statutory Authority G.S. 20- 179(e) (6) and (m).

******************

Notice is hereby given in accordance with G.S.
150B-21.2 that the DHR/Division of Medical
Assistance intends to amend rules cited as 10
NCAC SOB .0313, .0407 and adopt SOB .0314.

1 he proposed effective date of this action is
September 1, 1994.

1 he public hearing will be conducted at 1:30
p.m. on July 1, 1994 at the North Carolina Divi-
sion of Medical Assistance, 1985 Umstead Drive,
Room 132, Raleigh, NC 27603.

Keason for Proposed Action: Amendment neces-
sary to apply the same methodology and restric-
tions on amount of guardianship fees as applied by
Social Security.

Ksomment Procedures: Written comments con-
cerning these Rules must be submitted by July 1 ,
1994, to: Division of Medical Assistance, 1985
Umstead Drive, Raleigh, NC 27603 ATTN: Clar-
ence Ervin, APA Coordinator. Oral comments
may be presented at the hearing. In addition, a
fiscal impact statement is available upon written
request from the same address.

CHAPTER 50 - MEDICAL ASSISTANCE

SUBCHAPTER 50B - ELIGIBILITY
DETERMINATION

SECTION .0300 - CONDITIONS
FOR ELIGIBILITY

.0313 INCOME

(a) Income from the following sources shall be
counted in the calculation of financial eligibility:
(1) Unearned.

(A) RSDI,

(B) Veteran's Administration,

(D) Pensions or retirement benefits,

(E) Workmen's Compensation,

(F) Unemployment Compensation,

(G) Support Payments,
(H) Contributions,

(I) Dividends or interest from stocks,
bonds, and other investments,

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NORTH CAROLINA REGISTER

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318

PROPOSED RULES

(J)
(K)

(L)

(M)
(N)
(O)
(P)

(Q)
(R)

(S)
(T)
(U)

(V)

(W)

(X)
(Y)

(Z)

(2)

(A)

(B)
(C)

(D)
(E)
(F)

(G)

(H)

(I)

(3)

Trust fund income,
Private disability or employment
compensation,

That portion of educational loans,
grants, and scholarships for mainte-
nance,

Work release,
Lump sum payments,
Military allotments,
Brown Lung Benefits,
Black Lung Benefits,
Trade Adjustment benefits,
SSI when the client is in long term
care,

VA Aid and Attendance when the
client is in long term care,
Foster Care Board payments in excess
of state maximum rates for M-AF
clients who serve as foster parents,
Income allocated from an institutional-
ized spouse to the client who is the
community spouse as stated in 42
U.S.C. 1396r-5(d),
Income allowed from an institutional-
ized spouse to the client who is a
dependent family member as stated in
42 U.S.C. 1396r-5(d),
Sheltered Workshop Income,
Loans if repayment of a loan and not
counted in reserve,

Income deemed to Family and
Children's clients.
Earned Income.
Income from wages, salaries, and
commissions,
Farm Income,

Small business income including
self-employment,
Rental income,

Income from roomers and boarders,
Earned income of a child client who
is a part-time student and a full-time
employee,

Supplemental payments in excess of
state maximum rates for Foster Care
Board payments paid by the county to
Family and Children's clients who
serve as foster parents,
Earned income tax credits for the
Aged, Blind or Disabled only,
VA Aid and Attendance paid to a
budget unit member who provides the
aid and attendance.
Additional sources of income not listed
in (1) or (2) of this Rule will be

considered available unless specifically
excluded by (b) of this Rule, or by
regulation or law.
(b) Income from the following sources shall not

be counted in the calculation of financial

eligibility:

(1) Earned income of a child who is a
part-time student but is not a full-time
employee;

(2) Earned income of a child who is a
full-time student;

(3) Incentive payments and training
allowances made to WIN training
participants;

(4) Payments for supportive services or
reimbursement of out-of-pocket
expenses made to volunteers serving as
VISTA volunteers, foster grandparents,
senior health aides, senior companions,
Service Corps of Retired Executives,
Active Corps of Executives, Retired
Senior Volunteer Programs, Action
Cooperative Volunteer Program,
University Year for Action Program,
and other programs under Titles I, II,
and III of Public Law 93-113;

(5) Foster Care Board payments equal to or
below the state maximum rates for
Family and Children's clients who
serve as foster parents;

(6) Earnings of M-AABD clients who are
participating in ADAP (Adult
Developmental Activity Program)
training programs for a specified
period;

(7) Income that is unpredictable, i.e.,
unplanned and arising only from time to
time. Examples include occasional
yard work, sporadic babysitting, etc.;

(8) Relocation payments;

(9) Value of the coupon allotment under
the Food Stamp Program;

(10) Food (vegetables, dairy products, and
meat) grown by or given to a member
of the household. If home grown
produce is sold, count as earned
income;

(11) Benefits received from the Nutrition
Program for the Elderly;

(12) Food Assistance under the Child
Nutrition Act and National School
Lunch Act;

(13) Assistance provided in cash or in kind
under any governmental, civic, or
charitable organization whose purpose

319

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PROPOSED RULES

is to provide social services or
vocational rehabilitation. This includes
V.R. incentive payments for training,
education and allowance for
dependents, grants for tuition, chore
services under Title XX of the Social
Security Act, VA aid and attendance or
aid to the home bound if the individual
is in a private living arrangement;

(14) Loans or grants such as the GI Bill,
civic, honorary and fraternal club
scholarships, loans, or scholarships
granted from private donations to the
college, etc., except for any portion
used or designated for maintenance;

(15) Loans, grants, or scholarships to
undergraduates for educational purposes
made or insured under any program
administered by the U.S. Department of
Education;

(16) Benefits received under Title VII of the
Older Americans Act of 1965;

(17) Payments received under the
Experimental Housing Allowance
Program (EHAP);

(18) In-kind shelter and utility contributions
paid directly to the supplier. For
Family and Children's cases, shelter,
utilities, or household furnishings made
available to the client at no cost;

(19) Food/clothing contributions in Family
and Children's cases (except for food
allowance for persons temporarily
absent in medical facilities up to 12
months);

(20) Income of a child under 21 in the
budget unit who is participating in
JTPA and is receiving as a child;

(21) Housing Improvement Grants approved
by the N.C. Commission of Indian
Affairs or funds distributed per capital
or held in trust for Indian tribe
members under PL. 92-254, PL.
93-134 or PL. 94-540;

(22) Payments to Indian tribe members as
permitted under PL. 94-114;

(23) Payments made by Medicare to a home
renal dialysis patient as medical
benefits;

(24) SSI except for individuals in long term
care;

(25) HUD Section 8 benefits when paid
directly to the supplier or jointly to the
supplier and client;

(26) Benefits received by a client who is a

representative payee for another
individual who is incompetent or
incapable of handling his affairs. Such
benefits must be accounted for separate
from the payee's own income and
resources;

(27) Special one time payments such as
energy, weatherization assistance, or
disaster assistance that is not designated
as medical;

(28) The value of the U.S. Department of
Agriculture donated foods (surplus
commodities);

(29) Payments under the Alaska Native
Claims Settlement Act, Public Law
92-203;

(30) Any payment received under Title II of
the Uniform Relocation Assistance and
Real Property Acquisition Policies Act
of 1970;

(31) HUD Community Development Block
Grant funds received to finance the
renovation of a privately owned
residence;

(32) Reimbursement for transportation
expenses incurred as a result of
participation in the Community Work
Experience Program or for use of
client's own vehicle to obtain medical
care or treatment;

(33) Adoption assistance;

(34) Incentive payments made to a client
participating in a vocational
rehabilitation program;

(35) Title XX funds received to pay for
services rendered by another individual
or agency;

(36) Any amount received as a refund of
taxes paid;

(37) Any Cost of Living Allowance (COLA)
increase in the RSDI benefit for a
disabled widow or widower resulting
from the 1983 Actuarial Reduction
Formula (ARF) which caused the loss
of SSI effective January, 1984, for an
M-AA, M-AB, or M-AD client:

(A) Who received a disabled widow or
widower's benefit and SSI
simultaneously in 1983 as identified
by the Social Security Administration,
and

(B) Who lost SSI because of the
elimination of the ARF, and

(D) Who was between 50 and 59 years of

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320

PROPOSED RULES

age in 1983, and

(E) Who applied for Medicaid no later
than June 30, 1988, and

(F) Who is classified as Categorically
Needy;

(38) Any Cost of Living Allowance (COLA)
increase in the RSDI benefit for a client
or his financially responsible spouse or
parent(s), who:

(A) Is classified as Categorically Needy
for the M-AA, M-AB, or M-AD
programs, and

(B) Lost SSI or State/County Special
Assistance (S/C-SA) for any reason,
and

(C) Would currently be eligible for SSI or
S/C-SA if all COLA's since he was
last eligible for and received RSDI
and SSI or S/C-SA concurrently were
disregarded;

(39) The RSDI benefit for a client who:

(A) Is a disabled widow or widower or
surviving divorced spouse, and

(B) Received SSI for the month prior to
the month he began receiving RSDI,
and

(D) Is not entitled to a Medicare Part A.

(40) Earnings of aged, blind and disabled
individuals who have a plan for achiev-
ing self-support (PASS) that is ap-
proved by the Social Security Adminis-
tration.

(c) Income levels for purpo s e purposes of
establishing financial eligibility are those amount
amounts approved by the N.C. General Assembly
and stated in the Appropriations Act for categori-
cally needy and medically needy classifications,
except for the following:

(1) The income level shall be reduced by
one-third when an aged, blind or dis-
abled individual lives in the household
of another person and does not pay his
proportionate share of household ex-
penses. The one-third reduction shall
not apply to children under nineteen
years of age who live in the home of
their parents;

(2) An individual living in a long term care
facility or other medical institution shall
be allowed a thirty dollar ($30.00)
income level, and a couple in the same
room in a long term care facility shall

be allowed a sixty dollar ($60.00) as
income level a deduction for personal
needs described under Rule .0314
(Personal Needs Allowance) of this
Subchapter .

(3) Individuals who arc in a long term cam

facility for a temporary period of 3ix
months or less s hall be allowed the
income level provided by — statute in
addition to the thirty dollar ($30.00)
level .

Authority G.S. 108A-25(b); 108A-61; 42 C.ER.
435.135; 42 C.ER. 435.731; 42 C.ER. 435.732;
42 C.ER. 435.733; 42 C.F.R. 435.811; 42 C.ER.
435.812; 42 CER. 435.831; 42 CER. 435.832;
42 CER. 435.1007; 42 U.S.C 1383c(b); 42
U.S.C 1383c(d); 45 CER. 233.20; P.L. 99-272;
Section 12202; Alexander v. Flaherty Consent
Order filed February 14, 1992.

.0314 PERSONAL NEEDS
ALLOWANCE

An individual living in a long term care facility
or other medical institution shall be allowed an
amount for personal needs. The personal needs
allowance is the sum of the following, but not to
exceed the income maintenance level provided by
statute for a single individual (or a couple, if in the
same LTC room) in a private living arrangement.

in "

la)

Standard Personal Needs Amount:
A thirty dollar ($30.00) deduction for
one individual; or

£b] Sixty dollar ($60.00) deduction for a
married couple in the same long term
care facility; or

(cl Ninety dollar ($90.00) deduction for a
veteran (or the surviving spouse of a
veteran) with no living dependents
whose pension has been reduced to
ninety dollars ($90.00) by the Veterans
Administration;
(2) Individuals With Greater Need:

(a) Work Incentive Allowance: Individuals
who reside in an ICF or ICF-MR facili-
tv_ and who are regularly engaged in
work activities as part of their develop-
mental plan for which they receive
otherwise countable wages shall be
allowed an incentive deduction in the
following amounts:

321

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PROPOSED RULES

Monthly Net Wages

$ 1 to $100
$101 to $200
$201 to $300
$301 and greater

Incentive Allowance

Up to $50
$80
$130

$212

(b) Guardianship fees: Individuals, for

whom a guardian of the estate has been

named by the court, shall be allowed.

for payment of guardianship fees.

whichever of the following amounts ]s

less:

£i) 10% of total monthly income from all

sources, both earned and unearned: or

(ii) Twenty-five dollars ($25.00) per

month.

Authority G.S. 108A-25(b); 42 C.ER. 435.135; 42
C.F.R. 435.731; 42 C.F.R. 435.732; 42 C.F.R.
435.733; 42 C.F.R. 435.831; 42 U.S.C. 1383c(b);
42 U.S.C. 1383c(d).

SECTION .0400 - BUDGETING
PRINCIPALS

.0407 PATIENT LIABILITY

(a) Patient liability shall apply to clients who
live in facilities for skilled nursing, intermediate
nursing, intermediate nursing for mental retarda-
tion or other medical institutions.

(b) The client's patient liability for cost of care
shall be computed as a monthly amount after
deducting the following from his total income:

(1) An amount for his personal needs as
established under Rule ^0344 .0314 of
this Subchapter;

(2) Income given to the community spouse
to provide him a total monthly income
from all sources, equal to the "mini-
mum monthly maintenance needs allow-
ance" as defined in 42 U.S.C.
1396r-5(d)(3)£AM);

(3) Income given to family members
described in 42 U.S.C. 1396r-5(d)(l),
to provide each, from all sources of
income, a total monthly income equal
to!

(A) One-third one third of the amount
established under 42 U.S.C.
1396r-5(d)(3)(A)(i);or

(B) Where there is no community spouse,
an amount for the number of
dependents, based on the income level
for the corresponding budget unit

number, as a pproved by the NC
General Assembly and stated in the
A ppropriations Act for categorically
and medically needy classifications:

(4) The income maintenance level provided
by statute for a single individual in a
private living arrangement with no
spouse or dependents at home, for
whom the physician of record has
provided a written statement that the
required treatment is such that the
patient is expected to return home
within six months, shall be allowed:

(5) {4) Ad amount for unmet medical needs
as determined under Paragraph (f) of
this Rule.

(c) Patient liability shall apply to institutional
charges incurred from the date of admission or the
first day of the month as appropriate and shall not
be prorated by days if the client lives in more than
one institution during the month.

(d) The county department of social services
shall notify the client, the institution and the state
of the amount of the monthly liability and any
changes or adjustments.

(e) When the patient liability as calculated in
Paragraph (b) of this Rule exceeds the Medicaid
reimbursement rate for the institution for a 31 day
month:

(1) The patient liability shall be the
institution's Medicaid reimbursement
rate for a 31 day month;

(2) The client shall be placed on a
deductible determined in accordance
with Federal regulations and Rules
.0404, .0405 and .0406 of this
Subchapter.

(f) The amount deducted from income for unmet
medical needs shall be determined as follows:

(1) Unmet medical needs shall be the costs
of:

(A) Medical care covered by the program
but that exceeds limits on coverage of
that care and that is not subject to
payment by a third party;

(B) Medical care recognized under State
and Federal tax law that is not
covered by the program and that is
not subject to payment by a third
party; and

(C) Medicare and other health insurance
premiums, deductibles, or coinsurance
charges that are not subject to
payment by a third party.

(2) The amount of unmet medical needs

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322

PROPOSED RULES

deducted from the patient's monthly
income shall be limited to monthly
charges for Medicare and other health
insurance premiums.

(3) The actual amount of incurred costs
which are the patient's responsibility
shall be deducted when reported from
the patient's liability for one or more
months.

(4) Incurred costs shall be reported by the
end of the six month Medicaid
certification period following the
certification period in which they were
incurred.

Authority G.S. 108A-54; 42 C.ER. 435.732; 42
C.ER. 435.733; 42 C.F.R. 435.831; 42 C.F.R.
435.832; 42 U.S.C 1396r-5.

TITLE 15A - DEPARTMENT OF

ENVIRONMENT, HEALTH, AND

NATURAL RESOURCES

Notice is hereby given in accordance with G.S.
150B-21.2 that EHNR - Commission for Health
Services intends to amend rule cited as 15A NCAC
18A .2508; and adopt rule cited as 15 A NCAC
18A .2539.

1 he proposed effective date of this action is
October 1, 1994.

1 he public hearing will be conducted at 1:30
p.m. on July 21, 1994 at the Archdale Building,
Ground Floor Hearing Room, 512 North Salisbury
Street, Raleigh, N C.

MXeason for Proposed Action:
15A NCAC 18A .2508 - NC General Statute 130A-
282 allows for pools constructed prior to May
1993 not to comply with certain design and con-
struction standards; however, if these pools are
remodeled they must meet all current design and
construction requirements. The proposed change
in the definition of "remodeled" would allow for
changes to be made in pool designs in order to
eliminate the potential for suction hazards created
by single drains without having to comply with all
other design at construction requirements.
This change will greatly reduce the cost of compli-
ance and should encourage owners of wading
pools with single drains to make the necessary

changes needed to eliminate the potential suction

hazards.

ISA NCAC 18A .2539 - This Rule is necessary to

reduce the risk of suction injury at public wading

pools.

Comment Procedures: All persons interested in
these matters are invited to attend the public
hearing. Written comments may be presented at
the public hearing or submitted to Grady L.
Balentine, Department of Justice, PO Box 629,
Raleigh, NC 27602-0629. All written comments
must be received by August 1 , 1994. Persons who
wish to speak at the hearing should contact Mr.
Balentine at (919) 733-4618. Persons who call in
advance of the hearing will be given priority on
the speaker 's list. Oral presentation lengths may
be limited depending on the number of people that
wish to speak at the public hearing. Only persons
who have made comments at a public hearing or
who have submitted written comments will be
allowed to speak at the Commission meeting.
Comments made at the Commission meeting must
either clarify previous comments or proposed
changes from staff pursuant to comments made
during the public hearing process.

IT IS VERY IMPORTANT THAT ALL
INTERESTED AND POTENTIALLY AFFECTED
PERSONS, GROUPS, BUSINESSES,
ASSOCIATIONS, INSTITUTIONS OR AGENCIES
MAKE THEIR VIEWS AND OPINIONS KNOWN
TO THE COMMISSION FOR HEALTH SERVICES
THROUGH THE PUBLIC HEARING AND
COMMENT PROCESS, WHETHER THEY
SUPPORT OR OPPOSE ANY OR ALL
PROVISIONS OF THE PROPOSED RULES. THE
COMMISSION MAY MAKE CHANGES TO THE
RULES AT THE COMMISSION MEETING IF THE
CHANGES COMPLY WITH G.S. 150B-21.2(f).

Auditor's Note: These Rules were filed as
temporary rules effective June 1, 1994 for a
period of 180 days or until the permanent rule
becomes effective, whichever is sooner.

CHAPTER 18 - ENVmONMENTAL
HEALTH

SUBCHAPTER 18 A - SANITATION

SECTION .2500 - PUBLIC SWIMMING
POOLS

323

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NORTH CAROLINA REGISTER

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PROPOSED RULES

.2508 DEFINITIONS

The following definitions shall apply throughout
this Section:

(1) Equipment replacement means
replacement of individual components of
the hydraulic and disinfection systems
such as pumps, filters, and automatic
chemical feeders.

(2) Public swimming pool means public
swimming pool as defined in G.S.
130A-280. Public swimming pools are
divided into three types:

(a) Swimming pools are all public
swimming pools except spas and
wading pools.

(b) Spas are special facilities designed for
recreational and therapeutic use which
are not drained, cleaned, or refilled
after each individual use. Spas may
include, but not be limited to, units
designed for hydrojet circulation, hot
water, cold water mineral bath, air
induction bubbles, or any combination
thereof. Common terminology for spas
includes "therapeutic pool",
"hydrotherapy pool", "whirlpool", "hot
spa", and "hot tub".

(3) Remodeled means renovations requiring
disruption of major portions of the pool
shell or deck, changes in the pool profile,
or redesign of the pool hydraulic system.
Remodeled does not include equipment
replacement or repair or addition of
outlets for the purpose of reducing
suction hazards .

(4) Repair means repair of existing
equipment, replastering or repainting of
the pool interior, replacement of tiles or
coping and similar maintenance activities.

(b) Operators of all public wading pools shall
inspect pools daily to ensure the drain covers are
in good condition and securely attached.

Statutory Authority G.S. 130A-282.

Statutory Authority G. S. 130A-282.

.2539 SUCTION HAZARD REDUCTION

(a) At all public wading pools which use a
single main drain for circulation of water, signs
shall be posted stating: "WARNING Jo prevent
serious injury do not allow children in wading pool
if drain cover is broken or missing". Signs shall
be in letters at least one-half inch in height and
shall be posted where they are visible to people
entering the wading pool.

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NORTH CAROLINA REGISTER

June 1, 1994

324

RRC OBJECTIONS

1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S.
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d).

HUMAN RESOURCES

Children's Services

10 NCAC 41 F .0704 - Physical Facility
Agency Revised Rule

Facility Services

10 NCAC 3L .0906 - Compliance with Laws
Rule Withdrawn by Agency

Medical Assistance

10 NCAC 261 .0304 - Hearing Procedures

Agency Revised Rule

INSURANCE

Financial Evaluation Division

11 NCAC 11C .0308 - Foreign HMO: Successful Operation

Agency Revised Rule
11 NCAC 11F .0207 - Specific Standards for Morbidity, Interest and Mortality

Agency Revised Rule
11 NCAC 1 IF .0208 - Reserves for Waiver of Premium

Agency Revised Rule

LABOR
OSHA

RRC Objection 04/21/94
Obj. Removed 04/21/94

RRC Objection
Obj. Removed

RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed

04/21/94

03/17/94
03/17/94

03/17/94
03/17/94
03/17/94
03/17/94
03/17/94
03/17/94

13 NCAC 7 A .0707 - \hriances and Other Relief Under Section 95-1 32(a) RRC Objection 04/21/94